Hoosier conservatives were dominant and victorious in the General Assembly during the recent session, but now their three major pieces of legislation are on shaky ground. The laws cracking down on illegal immigration and defunding abortion clinics have received rebukes from federal judges, and the sweeping new school voucher law is facing a teacher-backed lawsuit. Questions are being raised about how laws are vetted for legal issues, since so much legislation seems to have flaws this year. Republicans are blaming Democrats, who walked out for weeks and forced a heavy workload in a much shorter time, and they have a point. Democrats blame Republicans, who tried to do too much in that shortened time, and they have a point, too, though it seems remarkably brazen of them to make it.
Such mistakes can be minimized but not avoided altogether:
"Sometimes I wonder if you find legislators who just want to push the boundaries on something like that," said Doug Masson, a Lafayette lawyer and veteran observer of Indiana politics.
Masson used to work for Indiana's Legislative Services Agency, which does the grunt work of translating lawmakers' ideas and goals into legislation. LSA lawyers typically alert lawmakers if they spot something that is either unconstitutional or would violate federal law, he said.
Their job, Masson said, is not to make political judgments of whether an idea is good or bad, but to give lawmakers the lay of the land and let them decide whether to proceed from there.
Regular readers might recognize Mr. Masson as the Doug of Masson's Blog who comments here frequently. If his remarks about Indiana legislation have seemed especially insightful, now you know why.
His point about political judgments is an important one. The LSA researchers can only advise the legislators about the probable constitutionality of proposed legislation and its possible flaws and loopholes. It's then up to the lawmakers to decide whether to proceed, and the likelihood of a legal challenge to a proposal shouldn't be the only factor considered. A new proposal might be worth advancing even if it does face constitutional challenge, or it might not be. That's how the edifice of law is built.
That's why it's a valid point that the GOP tried to do too much in the walkout-shortened time available to it. Legislation that is based more on principle than on pragmatic concerns is legislation that can wait a little longer, since there is no immediate problem to solve or danger to avert. Heaven knows we have more than enough laws now, and taking a little time to more carefully craft these values-based bills in the next session wouldn't have been the worst thing the General Assembly ever did.
Doug again, from his blog:
But, it's a funny thing about legislation. When you draft a few tons of it, it becomes abundantly clear that there is nothing magic about it. It's just words on a page.
[. . .]
I'll add that getting legislators to slow down and listen felt like a major task even during ordinary years. A lot of them were busy, “big picture” types without a lot of patience for detail.
Yeah, what he said. Those particular comments are aimed at a goof in another bill, which the governor is temporarily fixing with an executive order.
Last week, Senate leaders discovered that one of the measures they'd passed this year accidentally repealed the Family and Social Services Administration.
It's Indiana's largest state agency, upon which some 1 million Hoosiers rely for Medicaid, food stamps and more. And under a new state law, it would be abolished.
[. . .]
The story is, state law sets dates for a host of things to sunset. An old law was going to have the FSSA, an expansive human services agency, sunset on June 30.
Nobody was seriously considering getting rid of the agency, and the General Assembly passed a measure that would repeal that sunset provision. Problem was, that measure was set to take effect July 1. In other words, under state law, the FSSA was already gone.
Whoooops!
How about we start a petition drive asking our state legislators to undertake, next session, after they do whatever budget fixes are necessary, only to repeal existing measures. Or maybe we could have a legislative neutrality act the way certain government units undertake fiscal neutrality measures: The General Assembly must repeal one old law for every new one it enacts.
Comments
Whatever one may think of the issues involved, it is the very definition of political posturing to pass legislation that any first-year law student could tell you cannot possibly survive a challenge in court.
The Republicans may not have left the state, but they spent their time pandering to voters on legislation they had to know would be quickly overturned.
The entire Legislature should have left the state as far as I'm concerned.
My proposal would be to make the inception date of new laws contingent upon how strong the vote was. For example, 51% passage means the law can not take hold until six months after passage. And a 100% vote could lead to immediate application of the new law. The time delay could be scaled accordingly for votes lying between these two extremes.
This would serve two purposes. First, it would encourage the majority Party to at least consider the other side
Thanks for the mention, Leo!
Even though I'm a liberal, I'm not a fan of the Journal Gazette's editorials and local columns. I may not agree with the N-S, but at least they take a stand. The JG editorials are what journalists refer to as the "Yes, but," or "On the other hand" type. They're shy about taking a stand.
But this morning (Tuesday) Tracy Warner wrote a pretty good column explaining why the school vouchers program is clearly unconstitutional. He praised religious schools, but pointed out, correctly, that our local Catholic and Lutheran schools clearly advertise that they indoctrinate students into Christianity.
Christianity is fine, but the First Amendment could not be clearer about forcing taxpayers - including Jew, Buddhists, atheists, Muslims, etc. - to pay for it.
Obviously the voucher law will not survive its first encounter with any federal court (it may pass muster with the state supreme court, but let's be honest - our state courts are packed with ultra-conservatives).
Here's Tracy's article, in which he argues that vouchers violate the state constitution's mandate that "No money shall be drawn to the treasury, for the benefit of any religious or theological institution" because (to paraphrase), a religious school is part of the mission of the church and to divert tax dollars so more students can attend those schools helps the religious institution.
I agree that federal doctrine has been pretty much decided by the courts and that vouchers do not violate the U.S. Constitution. I also agree that the state Supreme Court will say that they do not violate the state constitution. But I'm not quite so sure as you that "Obviously the voucher law will not survive its first encounter with any federal court."
Tracy sort of dismisses out of hand the notion that the vouchers really help students and parents (because they enable them to choose any school they want, with the money following the students) and therefore meet constitutional muster. But I think that's a plausible argument, and I wouldn't want to bet on the outcome one way or the other. The U.S. Supreme Court has already ruled vouchers are OK in an Ohio case in which the state constitutional issues were similar. (See article here.)
From Tracy's article: "And it
I think that we conservatives are celebrating bad law with regards to the school vouchers. I am in favor of permitting students and parents to exercise the new found right to choose schools and maybe even teachers (if they want).
However, I am even more concerned with the imposition of public-school-like rules and state control over participating private and religious schools. I would suggest that those groups in charge of non-government schools assess the implications of the restrictions that will come with participation in the voucher program.
That's a valid concern, I think. The thing I've always worried about when it comes to charter schools is that if it's such a great idea to relax some of the state requirements so the schools can innovate, why not relax them for ALL public schools?
Leo posits: "why not relax them for ALL public schools?"
One word answer: unions
Has anyone ever argued in court that it's unconstitutional for state money to pay hospitals which are Methodist, Lutheran or Roman Catholic?
It seems to me that the biggest problems with vouchers is that private schools cherry-pick students, and that they subsidize rich families at the expense of the poor. If a school accepts all students, regardless of ability or disability, and they accept the voucher as payment in full, offering religious education on top of what public schools offer shouldn't be a biggie.